CASE REPORTS: SC Clarifies Rules on Initiating Contempt Proceedings; Absolves LawyerBy Madeleine U.V.G. Avanzado

      The Supreme Court recently absolved Atty. Ma. Concepcion L. Regalado of indirect contempt as the proceedings against her had been improperly initiated.     The Court held that Section 4, Rule 71 of the Rules of Court provides for two ways to initiate indirect contempt proceedings: “(1) motu proprio by the court; or (2) through a verified petition and upon compliance with the requirements for initiatory pleadings.” It found that the contempt proceedings against Atty. Regalado were improperly initiated by the filing of an unverified Manifestation with Omnibus Motion.     “Evidently, the proceedings attendant to the conviction of petitioner Atty. Regalado for indirect contempt suffered a serious procedural defect to which this Court cannot close its eyes without offending the fundamental principles enunciated in the Rules that we, ourselves, had promulgated,” the Court said, even as it accorded respect to the Court of Appeals’ factual findings that Atty. Regalado’s acts constitute indirect contempt.     The Court of Appeals earlier had convicted Atty. Regalado of indirect contempt and fined her Php5,000 for facilitating a compromise agreement in an illegal dismissal case on appeal with the appellate court without the presence of the opposing party’s counsel. (GR No. 167988, Ma. Concepcion L. Regalado vs.

Antonio S. Go, February 6, 2007)

Benchmark Online February 2007

Love in the Words of the Court Compiled by Atty. Richard Pascual, Office of the Reporter

     In this month of hearts, we have compiled the following passages from decisions of the Court throughout the decades that speak of that mysterious thing called LOVE.            “Love of country should be something permanent and lasting, ending only in death; loyalty should be its worth of offspring. The outward manifestation of one or the other may for a time be prevented or thwarted by the irresistible action of the occupant; but this should not in the least extinguish nor obliterate the invisible feelings, and promptings of the spirit.” (GR No. L-409. Anastacio Laurel v. Eriberto Misa, January 30, 1947)     “There is nothing objectionable in her taking advantage of the law to give tangible expression to her maternal love, which is, without any doubt, universally considered the most sublime feeling nature has infused in human hearts. The feeling is so elemental that it is not unknown even to the lowest phyla of the animal kingdom. That even the fiercest wild animals are not devoid of such feeling is a wonder that cannot fail to move [the] most indifferent person.” (GR No. L- 1663, Florentina Villahermosa v. The Commissioner of Immigration, March 31, 1948)     “Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country…they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation.” (GR No. L-13954, Genaro Gerona, et al. v. The Honorable Sec. of Education, et al., August 12, 1959)     “The nuptial vows which solemnly intone the matrimonial promise of love ‘(f)or better or for worse, for richer or for poorer, in sickness and in health, till death do us part,‘ are sometimes easier said than done, for many a marital union figuratively ends on the reefs of matrimonial shoals. In the case now before us for appellate review, the marriage literally ended under circumstances which the criminal law, disdainful of romanticism, bluntly calls the felony of parricide.” (GR No. 102984. People of the Philippines v. Ruben Takbobo, June 30, 1993)

     “Marital union is a two-way process. An expressive interest in each other’s feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love… respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution.” (GR No. 119190, Chi Ming Tsoi v. Court of Appeals and Gina Lao- Tsoi, January 16, 1997)     “Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing, and safeguard their best interest and welfare. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offspring invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.” (GR No. 114742, Carlitos E. Silva v. Hon. Court of Appeals and Suzanne T. Gonzales, July 17, 1997)     ”We cannot castigate a man for seeking out the partner of his dreams, for marriage is a sacred and perpetual bond which should be entered into because of love, not for any other reason.” (GR No. 97369, Patricia Figueroa, v. Simeon Barranco, Jr., July 31, 1997)     “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” (AM P-02-1651, Estrada v. Escritor, August 4, 2003)     “The Court, like all well-meaning persons, has no desire to dash romantic fancies, yet in the exercise of its duty, is all too willing when necessary to raise the wall that tears Pyramus and Thisbe asunder.” (AM No. P-02- 1564, Concerned Employee v. Glenda Espiritu Mayor, November 23, 2004)

Benchmark Online March 2007

SC Affirms Reinstatement of Employee Dismissed on Account of Pregnancy By Arcie M. Sercado

     It is illegal to terminate an employee on account of her pregnancy.     The Supreme Court found that Del Monte Philippines, Inc. illegally terminated the employment of its field laborer Lolita Velasco after she had been absent from work due to a urinary tract infection contracted during pregnancy. It ruled that absences due to a justified cause cannot be a ground for dismissal, even if the dates of her absences do not correspond to those in her medical certificates because pregnancy is a long-term condition accompanied by an assortment of related illnesses.     The Court found that Velasco was able to justify her absences in accordance with company rules and policy. Prior to her absences, Velasco consulted the company’s doctor, who advised her to have rest-in-quarters for several days. Likewise, she attempted to file leaves of absence, which Del Monte’s supervisor unjustifiably refused to receive.     The Court also ruled that Del Monte had no legal basis to terminate Velasco on the ground that the latter had an alleged “long history” of unauthorized absences committed several years beforehand and that these absences should also be considered. The Court held that Velasco’s last string of absences is justifiable and had been subsequently explained. These cannot be considered together with her previous infractions as gross and habitual neglect.     Article 137 of the Labor code states that “it is unlawful for any employer to discharge a woman on account of her pregnancy, while on leave or in confinement due to her pregnancy.” (GR No. 153477,

Del Monte Philippines, Inc. v. Lolita Velasco , March 6, 2007 )

Court Upholds Retainer Contract By Gleo Sp. Guerra

     The Court upheld the validity of a retainer contact between Aurora B. Camacho and Atty. Angelino Banzon whereby the former undertook to convey 5,000 sq. m of her property as payment for the latter’s

legal services. It, however, ruled that Atty. Banzon is no longer entitled to an additional 1,000 sq.m., it appearing that the parties had agreed upon specific sums of money as attorney’s fees for their other cases.     The Court held that “Lawyers are…as much entitled to judicial protection against injustice on the part of their clients as the clients are against abuses on the part of the counsel. The duty of the court is not only to see that lawyers act in a proper and lawful manner, but also to see to it that lawyers are paid their just and lawful fees. If lawyers are entitled to fees even if there is no written contract, with more reason that they are entitled thereto if their relationship is governed by a written contract of attorney’s fees.” (GR No. 127520, Aurora Fe B. Camacho v. Court of Appeals and Angelino Banzon , February 9,

2007)

SC Adopts Add’l Rules re TROs on Foreclosures of Real Estate MortgagesBy Jay B. Rempillo

     The Supreme Court has issued additional guidelines on the issuance of temporary restraining orders (TROs) or writs of preliminary injunctions enjoining foreclosures of real estate mortgages, effective March 10, 2007.     The following guidelines are contained in the Court’s three-page resolution adopting the following additional rules on Extrajudicial or Judicial Foreclosure of Real Estate Mortgages as recommended by the SC Committee on Revision of the Rules of Court:     1. No TRO or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the loan secured by the mortgage has been paid or is not delinquent unless the application is verified and supported by evidence of payment;     2. No TRO or writ of preliminary injunction against the extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that the interest on the loan is unconscionable, unless the debtor pays the mortgagee at least 12 percent per annum interest on the principal obligation as stated in the application for foreclosure sale, which shall be updated monthly while the case is pending;     3. Where a writ of preliminary injunction has been issued against a foreclosure of mortgage, the disposition of the case shall be speedily resolved. To this end, the court concerned shall submit to the SC, through the Office of the Court Administrator, quarterly reports on the progress of the cases involving Php10 million and above;     4. All requirements and restrictions prescribed for the issuance of a TRO/writ of preliminary injunction, such as the posting of a bond, which shall be equal to the amount of the outstanding debt, and the time limitation for its effectivity, shall applyas well to a status quo order. (AM No. 99-10-05-O, Re: Procedure in Extrajudicial Or Judicial

Foreclosure of Real Estate Mortgages, February 20, 2007)

MERALCO Ordered to Pay Damages to SubscriberBy Madeleine U.V.G. Avanzado

     The Supreme Court recently ordered the Manila Electric Company (MERALCO) to desist from collecting an unjustified billing adjustment from its subscriber Ma. Victoria Jose and to pay her moral and exemplary damages.     MERALCO previously issued a differential billing adjustment after alleging that defects caused Jose’s meter to register only 50% of her actual electric consumption for a period of two years. Jose filed a petition with the lower court seeking to permanently restrain the collection of the adjustment, which amounted to Php232,385.20, and prevent MERALCO from discontinuing electrical services.     The Supreme Court held that although MERALCO has the right to collect on differential billings, it was unable to establish the factual basis for arriving at the amount of the adjustment. The Court found that the adjustment was merely based on MERALCO’s company policy, as testified by its billing clerk, and its own records of Jose’s billings, which revealed no dramatic increase nor decrease in electric consumption in the billing cycles preceding, during, and succeeding the period concerned.     The Court also found that MERALCO was grossly negligent in failing to conduct regular precautionary tests on its meters and, thus, could not pass its liability for losses arising from defective meters onto the consumer by issuing a differential billing and threatening disconnection for non-

payment.     MERALCO was thus ordered to pay Jose Php100,000 in moral damages and Php50,000 in exemplary damages for “its callousness toward its customers and its inattention to its duty of keeping its facilities and equipment well maintained.” (GR No. 152769, Manila Electric Company v. Ma. Victoria Jose , February 14, 2007 )

CASE REPORTS: SC Acquits Illiterate Fisherman of Double MurderBy Gleo Sp. Guerra

      The Supreme Court recently acquitted an unschooled fisherman, Jerry Rapeza, on the ground of insufficiency of evidence leading to reasonable doubt of two counts of murder, thereby reversing the latter’s conviction by the Regional Trial Court of Palawan, Puerto Princesa City as affirmed by the Court of Appeals.

      The Court held inadmissible the thumbmarked extrajudicial confession executed in Filipino of Rapeza, as it was not sufficiently established that Rapeza, who is not well-versed in Filipino, was assisted by an interpreter during the execution thereof. It further held that Rapeza’s confession was not made with the assistance of competent and independent counsel of his choice, as the only participation of the lawyer concerned appears to be the notarization of the extrajudicial confession. Thus, the Court ruled that the lack of legal assistance, along with the circumstance that the confession contains facts and details appearing to have been supplied by the police investigators themselves, belies the voluntariness of the confession. It also noted that the confession does not dovetail with the autopsy report. Finally, the Court said that no motive for the crimes can be ascribed to Rapeza.

      “In conclusion, the overriding consideration in criminal cases is not whether appellant is completely innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently met. With the exclusion of appellant’s alleged confession, we are left with no other recourse but to acquit him of the offenses charged for the constitutional right to be presumed innocent until proven guilty can be overcome only by proof beyond reasonable doubt,” the Court concluded. (GR No. 169431, People v.

Rapeza, April 4, 2007)

CASE REPORTS: SC Settles LP Leadership ControversyBy Madeleine U.V.G. Avanzado

      The Supreme Court recently upheld Senator Franklin M. Drilon’s leadership, over that of Mayor Jose “Lito” L. Atienza, Jr.’s, in the Liberal Party (LP) claim, at the same time confirming the jurisdiction of the COMELEC over the LP’s leadership issue and exercising its power of judicial review over the contested COMELEC resolutions.

      The Court upheld the COMELEC ruling voiding the elections held by Atienza, but found that the Daza-Drilon amendments to the LP Constitution, which effectively gave Drilon a fresh term as party president, were validly ratified. Thus, it overturned the COMELEC’s finding that Drilon’s position was merely hold-over in nature until it conducted elections for a new president. Consequently, the Court held that the issue as to whether the COMELEC has jurisdiction to order the LP to hold the election of its officers has become academic.

      The rift in LP’s leadership began when Drilon’s camp withdrew their support from President Gloria

Macapagal-Arroyo in July 2005, causing Atienza’s camp to hold the invalidated elections for new party leadership.

      Justices Antonio T. Carpio, Dante O. Tinga, and Cancio C. Garcia wrote separate opinions. Justice Antonio Eduardo B. Nachura took no part as he had previously participated in the subject LP Elections prior to being appointed to the Judiciary. (Res., GR Nos. 174992 & 175546, The Liberal Party v.

COMELEC & Atienza v. COMELEC, April 17, 2007)

CASE REPORTS: SC: Bail Can Be Granted to Potential Extraditee on Basis of Clear and Convincing EvidenceBy Jay B. Rempillo

     The Supreme Court recently held that a potential extraditee may be granted bail on the basis of clear and convincing evidence that the person is not a flight risk and will abide with all the orders and processes of the extradition court.

     Citing the various international treaties giving recognition and protection to human rights, the Court saw the need to reexamine its ruling in Government of United States of America v. Judge Purganan that limited the exercise of the right to bail to criminal proceedings.

     It said that while our extradition law does not provide for the grant of bail to an extraditee, there is no provision prohibiting him or her from filing a motion for bail, a right under the Constitution.

     “The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty….However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met,” the Court said.

     RP, being a signatory to the 1996 UN General Assembly which adopted the International Covenant on Civil and Political Rights, is “under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty,” the Court held.

The case involved the petition of the Government of Hong Kong Special Administrative Region to nullify two orders by a Manila Regional Trial Court (RTC) allowing potential extradite, Juan Antonio Muñoz, to post bail. The RP and Hong Kong signed in 1995 an extradition treaty, which became effective in 1997. Later, Muñoz was charged before the Hong Kong Court with three counts of the offense of “accepting an advantage as agent,” in violation of sec. 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong.

     The Supreme Court remanded the case to the Manila RTC, Branch 8 to determine whether Muñoz is entitled to bail on the basis of “clear and convincing evidence.” If Muñoz is not entitled to such, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. (GR No. 153675, Government of Hong Kong Special

Administrative Region v. Judge Olalia, Jr., April 19, 2007)

CASE REPORTS: SC Clarifies Evidentiary Value of Duplicate OriginalsBy Madeleine U.V.G. Avanzado

      All notarized copies of deeds of conveyance are duplicate originals, which for all legal intents and purposes may be considered as the best evidence of the transaction they embody.

      The Supreme Court recently clarified the evidentiary value of such duplicate originals when it corrected both the appellate and trial courts for treating two copies of the same Absolute Deed of Sale as different documents for the purpose of determining the genuineness of the signatures therein. It held that the two copies presented in evidence were duplicate originals as they were executed at or about the same time and contained identical contents.

      “Original does not mean the first paper written, in contrast to a copy or transcript made later. The original depends upon the issue to be proved. It is immaterial whether that document was written before or after another, was copied from another, or was itself used to copy from, as long as its contents are the subject of inquiry. Hence, one or some of these copies are still considered as originals, and they have equal claims to authenticity… As a matter of practice, deeds of conveyance are prepared in several copies for notarization and record purposes. After notarization, the notary public retains copies pursuant to the Rules on Notarial Practice, one for his record and the other for transmittal to the court, through Clerk of Court concerned, where he secured his notarial commission… All the notarized copies are originals,” the Court said.

      The case involved a contested Deed of Absolute Sale, wherein an expert witness was presented to testify on the genuineness of the signatures contained therein. Differing factual findings of the appellate and trial courts led the High Court to delve into the facts of the case. Finding the testimony presented to be inconsistent and unconvincing, it upheld the validity of the contested sale as there was no clear, positive, and convincing evidence of forgery that would impugn the due execution of the contested deed, which remains the best evidence of the transaction. (GR No. 162864, Spouses Alfaro v. Court of

Appeals, March 28, 2007)

CASE REPORTS: SC OKs Graft Charge Against PIATCO Chairman and PresidentBy Gleo Sp. Guerra

      The Supreme Court recently upheld the information for violation of Section 3(g) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, against Henry T. Go, Chairman and President of Philippine International Air Terminals Co., Inc. (PIATCO).

      Along with former Secretary of Transportation and Communication Vicente C. Rivera, Go had been charged by the Ombudsman in the Sandiganbayan regarding the Amended and Restated Concession Agreement (ARCA) for the construction of the Ninoy Aquino International Passenger Terminal III (NAIA-IPT III), alleged to be “manifestly and grossly disadvantageous to the government of the Republic of the Philippines.”

      The charge was a result of the May 5, 2003 ruling of the Court declaring, among others, the ARCA null and void for being contrary to public policy and that Paircargo, PIATCO’s predecessor-in-interest, lacked the requisite financial capacity to bid for the NAIA-IPT III project.

      In a 20-page decision penned by Justice Romeo J. Callejo, Sr., the SC Third Division held that “private persons, like petitioner Go, when conspiring with public officers, may be indicted and, if found guilty, held liable for violation of Section 3 (g) of RA 3019.”

      Citing as precedents the cases of Luciano v. Estrella, Singian, Jr. v. Sandiganbayan, and Domingo v. Sandiganbayan, the Court held that its ruling “is in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or

corrupt practices or which may lead thereto.” (GR No. 172602, Go v. Sandiganbayan, April 13,

2007)

SC Orders Comelec to Disclose Party-List Nominees’ NamesBy Jay B. Rempillo

Upholding the people’s right to information on matters of public concern, the Supreme Court has compelled the Commission on Elections (Comelec) to disclose the names of the nominees of the accredited party-list groups or organizations participating in the May 14 party-list elections.

The Comelec, which initially refused to reveal said information, had complied with the Court’s directive and released the names of the nominees of the party-list groups before the May 14 polls.

In a unanimous decision penned by Justice Cancio C. Garcia, the Court En Banc said that the Comelec “commited grave abuse of discretion when it refused the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective positions.” It said that the Comelec “has a constitutional duty to disclose and release the names of the nominees of the party-list groups.”

The Court cited section 7, Article III of the Constitution (the right of people to information on matters of public concern) and section 28, Article II of the Constitution (the State adopts and implements a policy of full public disclosure of all its transactions involving public interest) as its basis in ordering the poll body to divulge the said names.

The Court noted that no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. It said that the prohibition imposed on the Comelec not to disclose the names under section 7 of RA 7941 (Party-list System Act) is limited in scope and duration as it extends only to the certified list which the same provision requires to be posted in the polling places on election day. It further said that to stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. (GR No. 177271, BA-RA 7941 v. Comelec; GR No. 177314, Rosales v. Comelec, May 4, 2007)

Benchmark Online May 2007

Fixed Savings Deposit Subject to Documentary Stamp TaxBy Madeleine U.V.G. Avanzado

A passbook representing an interest- earning deposit account issued by a bank qualifies as a certificate of deposit drawing interest and is therefore subject to Documentary Stamp Tax (DST) under the National Internal Revenue Code (NIRC).

Affirming the Court of Tax Appeals, the Supreme Court has upheld a deficiency assessment of Php71,005,757.77 against the International Exchange Bank (IEB), representing deficiency DST on its Fixed Savings Deposits (FSD) for the years 1996 and 1997. The Court found that sec. 179 (180) of the NIRC, as amended by RA 9243, specifically includes “certificates or other evidences of deposits that are either drawing interest significantly higher than the regular savings deposit taking into consideration the size of the deposit and the risks involved or drawing interest and having a specific maturity date” as one type of debt instruments subject to DST, to which the FSD belongs.

The Court said that “not all certificates of deposit are negotiable. A certificate of deposit may or may not be negotiable as gathered from the use of the conjunction or, instead of and, in its definition. A certificate of deposit may be payable to the depositor, to the order of the depositor, or to some other person or his order… In any event, the negotiable character of any and all documents under Section 180 is immaterial for purposes of imposing DST.”

“To claim that time deposits evidenced by passbooks should not be subject to DST is a clear evasion of the rule on equality and uniformity in taxation that requires the imposition of DST on documents evidencing transactions of the same kind, in this particular case, on all certificates of deposits drawing interest,” the Court said. (GR No. 171266, International Exchange Bank v. CIR, April 4, 2007)

SC: Intel Entitled to Tax Refund, Leniency in VAT Implementation ImperativeBy Madeleine U.V.G. Avanzado

There is no law, internal revenue rule, or regulation requiring a Value Added Tax (VAT)-registered entity engaged in export sales to obtain authority from the Bureau of Internal Revenue (BIR) to print its sales invoices or requiring such authority to be reflected or indicated therein.

Thus the Supreme Court held when it ordered the Court of Tax Appeals (CTA) to determine and compute the tax credit or refund due to Intel Technology Philippines (Intel) for its unutilized VAT input taxes on domestic purchases of goods and services attributable to its zero-rated sales.

Although finding Intel to be legally entitled to its claim for refund or issuance of a tax credit certificate, the tax and appellate courts previously denied its claim on the ground that it purportedly failed to comply with invoicing requirements under Sections 113 and 237 of the National Internal Revenue Code (NIRC) since the Intel’s invoices do not bear the BIR authority to print, and in some cases failed to indicate Intel’s VAT-Registered Entity Tax Identification Number (TIN-V). This prompted the High Court to declare that “law and revenue regulations do not provide that failure to reflect or indicate in the invoices or receipts the BIR authority to print, as well as the TIN-V, would result in the outright invalidation of these invoices or receipts. Neither is it provided therein that such omission or failure would result in the outright denial of a claim for tax credit/refund.”

“It bears reiterating that while the pertinent provisions of the Tax Code and the rules and regulations implementing them require entities engaged in business to secure a BIR authority to print invoices or receipts and to issue duly registered invoices or receipts, it is not specifically required that the BIR authority to print be reflected or indicated therein. Indeed, what is important with respect to the BIR authority to print is that it has been secured or obtained by the taxpayer, and that invoices or receipts are duly registered… What applies to petitioner, as a PEZA-registered export enterprise, is the Court’s pronouncement that leniency in the implementation of the VAT is an imperative, precisely to spur economic growth in the country and attain global competitiveness as envisioned in our laws. The incentives offered to PEZA enterprises, among which are tax exemptions and tax credits, ultimately redound to the benefit of the national economy, enticing as they do more enterprises to invest and do business within the zones, thus creating more employment opportunities and infusing more dynamism to the vibrant interplay of market forces,” the Court said.

Setting aside the Court of Appeals decision affirming the CTA’s denial of Intel’s claim for refund or issuance of a tax credit certificate in the amount of Php11,770,181.70, the High Court found that Intel, as a VAT-registered and Philippine Economic Zone Authority (PEZA)-registered entity engaged in the export of advanced and large-scale integrated circuits, is entitled to its claim representing the input taxes it has paid on domestic purchases of goods and services for the period of April 1, 1998 to June 30, 1998, in accordance with the NIRC as amended by RA 9337. (GR No. 166732, Intel Technology Philippines v. Commissioner of Internal Revenue, April 27, 2007)

Award of Damages vs. Electric Cooperative UpheldBy Gleo Sp. Guerra

The Supreme Court has affirmed both the Court of Appeals and the Regional Trial Court in holding an electric cooperative liable for damages for disconnecting an electric meter of one of its subscribers for alleged tampering without notice to the latter.

In a decision penned by Justice Ma. Alicia Austria-Martinez for the Court’s Third Division, Samar Electric Cooperative, Inc. (SAMELCO) was ordered to pay jointly and severally with its inspector Baltazar Dacula a total of Php37,000.00 in damages to Estrella Quijano and to immediately reconnect the latter’s electric meter upon her request.

The Court held electricity to be “a basic necessity, the generation and distribution of which is imbued with public interest, and its provider is a public utility subject to strict regulation by the State in the exercise of police power. Failure to comply with these regulations will give rise to the presumption of bad faith or abuse of right.” In this case, the Court noted that under the law in force at the time of disconnection, PD 401, SAMELCO should only resort to disconnection after notice of differential billing to Quijano and affording her opportunity to settle the same, which it had failed to do. It also failed to give her notice when it disconnected her electric meter.

“The purpose of the notice requirement is to afford electric consumers opportunity to witness the inspection and protect themselves from contrived discovery of tampering. They must also be allowed to dispute any accusation of electricity pilferage. This purpose is not served by allowing inspection teams to swoop down on unsuspecting consumers,” the Court ruled. (GR No. 144474, Samar II Electric Cooperative, Inc. v. Quijano, April 27, 2007)

SC Unseats Mabalacat, Pampanga MayorBy Jay B. Rempillo

The Supreme Court has unseated Mabalacat Mayor Marino “Boking” Morales whom it found ineligible to have run in the 2004 elections as being a fourth-term candidate and ordered the vice-mayor of Mabalacat, Pampanga to immediately head its local government until June 30, 2007.

The Court granted the petitions of lawyers Venancio Q. Rivera and Normandick De Guzman to cancel

Morales’ Certificate of Candidacy (COC) dated December 30, 2003. The Court also dismissed the petition of mayoral candidate Anthony Dee for being moot since Morales was disqualified from continuing to serve as Mabalacat mayor.

The Court found that Morales had served as mayor for three consecutive terms immediately preceding the 2004 elections. Citing Ong v. Alegre, the Court said that the three-term limit rule as provided for in RA 7160 or the Local Government Code applies to Morales, making him ineligible to run for a fourth consecutive term.

Having found Morales ineligible, the Court said the former’s COC for the 2004 elections should also be cancelled per sections 6 and 7 of RA 6646 (The Electoral Reforms Law of 1987). Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. (GR No. 167591, Rivera v. Comelec; GR No. 170577, Dee v. Comelec, May 9, 2007)

SC: Same Benefits for INP, PNP RetireesBy Arcie M. Sercado

Integrated National Police (INP) retirees should have the same retirement benefits as those of Philippine National Police retirees (PNP).

Thus the Supreme Court held when it affirmed the Court of Appeals, which declared that the INP retirees are entitled to the same retirement benefits accorded upon retirees of the PNP under RA 6975, An Act Establishing the Philippine National Police under a Reorganized Department of the Interior and Local Government, as amended by RA 8551, The Philippine National Police Reform and Reorganization Act of 1998.

The Court ordered the Department of Budget and Management and concerned government agencies to implement the proper adjustments on the INP retirees’ retirement benefits. It found that the INP was never abolished by RA 6975 but was, instead absorbed, transferred, and/or merged, along with the other offices comprising the Philippine Constabulary (PC)-INP, with the PNP. As the INP was merely transformed into the PNP, its retirees cannot be excluded from the retirement benefits accorded to PNP retirees.

The Court likewise found that RA 6975 provides for its retroactive application to those who had retired prior to its effectivity.

Prior to the Court’s decision in this case, INP retirees and PNP retirees of the same rank had a disparity in their monthly pensions of as high as Php10,628.

The PNP was created through RA 6975 on December 13, 1990, to establish a police force that is national in scope and purely civilian in character, and to erase the stigma spawned by the militarization of the police force under the PC-INP structure. (GR No. 169466, Department of Budget and Management v. Manila’s Finest Retirees Association, Inc., May 9, 2007)

P.I. Matters Held to be Privileged CommunicationBy Arcie M. Sercado

Materials presented during preliminary investigation cannot be used as a basis for libel.

Thus the Supreme Court held when it upheld the lower court’s order granting the withdrawal of the information for libel against an estafa complainant on the ground that the newsletter, upon which the complaint was based, was considered privileged communication.

Complainant Vicente C. Ponce previously filed an estafa case against Nicasio I. Alcantara. Ponce submitted a newsletter to the investigating prosecutor as an annex to his complaint-affidavit, discussing how Alcantara defrauded him of his shares in the Iligan Cement Corporation. This in turn prompted Alcantara to file a libel complaint against Ponce.

The Court found that the newsletter was presented during the preliminary investigation of the estafa case, thus making it a form of privileged communication which consequently exempts it from libel. Referring to the United States case of Borg v. Boas, the Court stressed that “preliminary steps leading to judicial action of an official nature have been given absolute privilege.”

The Court explained that the controversial statements in the newsletter were made in the context of a criminal complaint against petitioner and were disclosed only to the official investigating the complaint and thus, were relevant to the investigation.

Privileged communication is communication which takes place within the context of a protected relationship, such as that between an attorney and a client or in this case, between a complainant and a prosecutor and cannot be used as basis for a libel case. (GR No. 156183, Alcantara v. Ponce, February 28, 2007)

SC Clarifies Conditions for Discharge of State Witness By Katrina M. Martinez

The testimony of a prospective state witness is not required to be substantially corroborated by other prosecution witnesses who are not among the accused in the same criminal case. Otherwise, the condition that “there must be no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the state witness” will be rendered nugatory.

Thus the Supreme Court First Division, through Chief Justice Reynato S. Puno, clarified when it affirmed the decision of the Court of Appeals discharging accused Feliciano Abutin and Domingo Tampelix from the information in a murder case to become state witnesses.

The Court held that the corroborative evidence required by rules on the discharge of an accused to be a state witnesse does not have to consist of the exact same evidence that will be testified on by the anticipated state witnesses. “We have ruled that ‘a conspiracy is more readily proved by the acts of a fellow criminal than by any other method…Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects.’ It is enough that the testimony of a co-conspirator is corroborated by some other witness or evidence,” the Court said. (GR No. 143093, Salvanera v. People, May 21, 2007)

Mercury Drug Liable for Selling Wrong Medication By Arcie M. Sercado

The Supreme Court recently ordered Mercury Drug Corporation (Mercury Drug) to pay Php50,000 and Php25,000 in moral and exemplary damages, respectively, due to its employee’s error in selling the wrong medicine to a customer. As a result, the customer fell asleep on the wheel and had an accident.

In a decision penned by Justice Angelina Sandoval-Guttierez, the Court’s First Division found that respondent Sebastian M. Baking would not have fallen asleep and lost control of his car had the employee of Mercury Drug issued the correct medication. Thus, the Court found Mercury Drug liable for the resulting injuries as its employee’s negligence implies that there has also been negligence on its part.

Baking, who was diagnosed with high blood sugar and triglyceride in November 1993 was sold Dormicum, a potent sleeping tablet, instead of the prescribed Diamicron, in an Alabang branch of the Mercury Drug Corporation because the latter’s sales representative had misread his prescription. Unaware that he was given the wrong medicine, Baking took one pill of Dormicum for three consecutive days. On the third day, he fell asleep on the wheel, causing his car to collide with another vehicle. (GR

No. 156037, Mercury Drug Corporation v. Baking, May 25, 2007)

Administrative Proceedings: Not Arena for Squabbling Lawyers By Madeleine U.V.G. Avanzado

Mutual bickering and unjustified recriminations between attorneys detract from the dignity of the legal profession and will not receive sympathy from the Court.

Thus the Supreme Court Special Third Division held in a resolution penned by Justice Cancio C. Garcia denying a motion for contempt and/or disbarment against Attorney Justo Paras filed against him by his estranged wife, Rosa Yap-Paras, for the former’s alleged violation of the suspension order meted upon him by the Court. 

“The Court takes this opportunity to remind the parties in the instant case, as well as petitioner-movant’s counsels, to avoid further squabbles and unnecessary filing of administrative cases against each other.  An examination reveals a pervasive atmosphere of animosity between Atty. Paras and petitioner’s counsels as evidenced by the number of administrative cases between them… Lawyers should treat each other with courtesy, fairness, candor, and civility,” the Court said.

The Court found no sufficient bases to support Yap-Paras’ allegation and, instead, found that Atty. Paras himself took the initiative to inform the lower courts of his one-year suspension from law practice for committing a falsehood in violation of his lawyer’s oath.  However, the Court reprimanded Atty. Paras for his failure to observe the respect due the Court in not promptly complying with its directive to

comment on Yap-Paras’ motion for contempt and/or disbarment.  (AC No. 4947, Yap-Paras v. Paras, June 7, 2007)

SC Orders PEA to Pay Php94 Million in Just Compensation By Gleo Sp. Guerra

The Supreme Court recently ordered the Public Estates Authority (PEA) to pay Php94,380,000.00 as just compensation for the property on which the southern abutment of the Zapote bridge of the Manila-Cavite Coastal Road had been constructed.

In a decision penned by Justice Angelina Sandoval-Gutierrez, the Court’s First Division reversed the Court of Appeals (CA) and reinstated the orders of the Regional Trial Court (RTC), Branch 202 of Las Piñas when it held that PEA should pay the property’s owner Julieta P. Tan the said property’s zonal valuation at Php20,000 per square meter when PEA filed its petition for expropriation in 2003. The Court said that the CA erred in ruling that the PEA’s taking of the property occurred in 1985 and that just compensation should be based on the zonal valuation in that year (Php2,000 per square meter). It noted that PEA’s entry into the property in 1985 was not for the purpose of expropriating the property but on condition that it should pay a monthly rental of Php10,000.00 and that, up to the present, no agreement had been reached for the sale of the property to PEA.

The Court also held that the CA erred in not dismissing PEA’s petition for certiorari, prohibition, and mandamus for being the wrong remedy since the RTC’s orders fixing the just compensation and denying PEA’s motion for reconsideration, respectively, are final in nature and should instead be appealed. (GR No. 170740, Tan v. Republic, May 25, 2007)

Benchmark Online July 2006

CASE REPORTS: 'Disgraceful' Clerk FinedBy Joshua P. Lapuz

        For making offensive and foul remarks, a clerk was recently fined by the Supreme Court.        Sheryll Madlangbayan of the Mandaluyong City Regional Trial Court, Branch 210 was fined Php1,000 for her disgraceful conduct against Leilani Nacionales, her erstwhile friend.     “"Even if respondent acted in retaliation to complainant's calling her 'Sheryll Maniac' when she uttered

'fuck you' and made a dirty finger sign, that these were done in public by a court employee who was then wearing the office uniform creates a bad impression not only against respondent as an employee but also against the judiciary,"” the Court said. “"Courts are looked upon by the people with high respect. Misbehavior by their employees within and around their vicinity necessarily diminishes their sanctity and dignity,"” it added. (AM No. P-06-2171, Leilani E. Nacionales vs. Sheryll S. Madlangbayan, Clerk III, Regional Trial Court, Mandaluyong City, Branch 210 , June 15, 2006 )

CASE REPORTS: 2 Lawyers Suspended, Notary Commissions RevokedBy Joshua P. Lapuz

     Two lawyers were recently suspended for one year and their commissions as notaries public revoked by the Supreme Court for dereliction of duty and inexcusable negligence.     Attys. Romeo Calubaquib and Jimmy Baliga were found guilty of violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility and the lawyer's oath for the incorrect entries in their respective notarial registers. They were also disqualified from reappointment as notaries public for two years.      “"...[T]he notary public is personally accountable for all entries in his notarial register. Respondents cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries, a reprehensible practice which to this day persists despite our open condemnation,"” the Court said. (AC No. 5377, Victor Lingan vs. Attys. Romeo Calubaquib and Jimmy P. Baliga , June 15, 2006 )

CASE REPORTS: One-Year Suspension for ‘Moonlighting’ StenographerBy Joshua P. Lapuz

     Judicial employees out to make extra money on the side be warned. Emiladie Anacan, Court Stenographer of the San Jose, Occidental Mindoro Regional Trial Court, Branch 45 was recently suspended for one year for "moonlighting."” She was found guilty of conduct grossly prejudicial to the best interest of the service for facilitating payments to landowners for expropriated lands in Occidental Mindoro for a fee.     “"[T]he Court frowns upon 'moonlighting' activities of court employees. While 'moonlighting' is not normally considered a serious misconduct, nonetheless, by the very nature of the position held, it amounts to a malfeasance in office,"” the Court said. (AM No. P-04-1816, Eusebio M. Baron vs. Emiladie T. Anacan, Court Stenographer III, RTC-Branch 45, San Jose, Occidental Mindoro , June 20, 2006)

CASE REPORTS: Judge Reprimanded for ImproprietyBy Joshua P. Lapuz

        Judge Jose Nacional of the Naga City Municipal Trial Court, Branch 1 was recently reprimanded by the Supreme Court for improper conduct for discussing the merits of a pending case pending before his sala with a party without the latter's counsel and the adverse party.     “"Respondent had exceeded the boundaries of propriety and regularity. Respondent should have known fully well that in every litigation, the manner and attitude of a judge are crucial to everyone concerned. It is improper for respondent to meet with the complainant and his wife to discuss the merits of the case without the presence of the accused and his counsel no matter how noble his intentions may have been,"” the Court said. (AM No. MTJ-05-1605, Pedro C. Abesa vs. Judge Jose P. Nacional, Municipal Trial Court, Branch 1, Naga City , June 8, 2006.)

CASE REPORTS: Lawyer Suspended for Representing Conflicting InterestsyBy Joshua P. Lapuz

      Atty. Luis Lokin, Jr. was recently suspended for three months by the Supreme Court for representing conflicting interests.The Court said that when Lokin appeared in the Securities and Exchange Commission (SEC) as counsel for the therein respondents PHILCOMSAT, et al., he was clearly representing a party which had an interest in preventing the implementation of the Compromise Agreement – the same agreement which Lokin and his law firm previously negotiated for Potenciano Ilusorio, the adverse party.   “"The act alone of representing a subsequent client against a former client in any manner related to the

subject of the previous litigation thus constitutes a violation of the rule against representing conflicting interests,"” the Court said. It added that whatever may be the tenor or merit of the arguments Lokin made in behalf of his clients in the SEC case, his mere act of appearing therein against a former client already constituted professional misconduct in view of the clear relation of the subject matter in that SEC case to that of the earlier case in the Sandiganbayan. (AC No. 6554, Erlinda K. Ilusorio-Bildner vs. Atty. Luis K. Lokin, Jr., and the Board of Governors of the IBP , June 5, 2006 )

Court Upholds Religious FreedomBy Gleo Sp. Guerra

     In a landmark ruling on religious freedom penned by Senior Associate Justice Reynato S. Puno, the Court ordered the dismissal of the administrative charge of "disgraceful and immoral conduct"” against a court employee who has been living with a man not her husband for the past 25 years and had a son by him.      Soledad Escritor, a court interpreter in the Regional Trial Court, Branch 253 of Las Piñas City, had claimed in her defense that her conjugal arrangement is in conformity with and has the approval of the Jehovah's Witnesses, the congregation to which she and her mate belong, per their Declaration of Pledging Faithfulness executed in 1991 and recorded in the Watch Tower Central Office. Only couples who have been baptized and are in good standing may execute The Declaration, which allows members of the congregation who have been abandoned by their spouses to enter into marital relations.     “"We find that in this particular case and under these distinct circumstances, respondent [Soledad] Escritor's conjugal arrangement cannot be penalized as she made out a case for exemption from the law based on her fundamental right to freedom of religion… [T]he state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom,"” said the Court in its 63-page signed resolution. Concurring were Justices Leonardo A. Quisumbing, Angelina Sandoval-Gutierrez, Ma. Alicia Austria-Martinez, Renato C. Corona, Adolfo S. Azcuna, Dante O. Tinga, Minita V. Chico-Nazario, and Cancio C. Garcia. Chief Justice Artemio V. Panganiban and Justices Consuelo Ynares-Santiago, Antonio T. Carpio, Conchita Carpio Morales, and Romeo J. Callejo, Sr. dissented. Justice Presbitero J. Velasco, Jr. took no part “"due to prior action of OCA."”       The Court found that that evidence presented by the Solicitor General "fails to demonstrate 'the gravest abuses, endangering paramount interests' which could limit or override respondent’s fundamental rights to religious freedom. Neither did the government exert any effort to show that the means it seeks to achieve its legitimate state objective is the least intrusive means."” (AM No. P-02-1651, Alejandro Estrada vs. Soledad S. Escritor , June 22, 2006)

Benchmark Online August 2006

SC Allows MRs of IBP ResolutionsBy Gleo Sp. Guerra

     Reiterating its 1996 ruling in Halimao v. Villanueva, the Supreme Court stressed that motions for reconsideration of resolutions of the Integrated Bar of the Philippines (IBP) in disciplinary cases may be filed by aggrieved parties.

     In Halimao, the Court, through Justice Vicente V. Mendoza, has held that the absence of such a remedy in the Rules of Court does not preclude the filing of such a motion: “Although Rule 139-B, §12 (c) makes no mention of a motion for reconsideration, nothing in its text or in its history suggests that such motion is prohibited. It may therefore be filed within 15 days from notice to a party. Indeed, the filing of such motion should be encouraged before resort is made to this Court as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of the evidence.”

     In a 13-page unanimous decision penned 10 years later by Justice Minita V. Chico-Nazario, the Court added, “Certainly, prudence dictates that the IBP be given the opportunity to correct its mistakes, if any, by way of motions for reconsideration before this Court takes cognizance of the case. This is to further insure that the grievance procedure will be allowed to duly run its course – a form of filtering process, particularly respecting matters within the competence of the IBP, before we step in.”

     The Court thus laid down the following guidelines to be observed by the IBP in disciplinary cases against lawyers:

     1. The IBP must first afford a chance to either party to file a motion for reconsideration of the IBP resolution containing its findings and recommendations within fifteen (15) days from notice of receipt by the parties thereon;

     2. If a motion for reconsideration has been timely filed by an aggrieved party, the IBP must first resolve the same prior to elevating to this Court the subject resolution together with the whole record of the case;

     3. If no motion for reconsideration has been filed within the period provided for, the IBP is directed to forthwith transmit to this Court, for final action, the subject resolution together with the whole record of the case;

     4. A party desiring to appeal from the resolution of the IBP may file a petition for review before this Court within fifteen (15) days from notice of said resolution sought to be reviewed; and

     5. For records of cases already transmitted to this Court where there exist pending motions for reconsideration filed in due time before the IBP, the latter is directed to withdraw from this Court the subject resolutions together with the whole records of the cases, within 30 days from notice, and, thereafter, to act on said motions with reasonable dispatch.

     Consistent with the foregoing, the Court remanded the case to the IBP for the proper disposition of respondent Atty. Jocelyn P. Reyela’s motion for reconsideration of the IBP resolution recommending her suspension for two years.

     Concurring in the decision are Chief Justice Artemio V. Panganiban, Senior Associate Justice Reynato S. Puno and Justices Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Dante O. Tinga, Cancio C. Garcia, and Presbitero J. Velasco, Jr. (AC No. 7055, Ramientas v. Reyala, July 31, 2006)

Benchmark Online August 2006

CASE REPORTS: Clerk of Court Dismissed for Forgery, FalsificationBy Joshua P. Lapuz

     Atty. Cecilia T. Faelnar, Clerk of Court of the Manolo Fortich, Bukidnon Regional Trial Court (RTC), Branch 11 was dismissed recently from the service by the Supreme Court (SC) for violating the Code of Conduct for Court Personnel, dishonesty, grave misconduct, falsification, and forgery.     The Court found Faelnar guilty of falsely writing the names of SC auditors with corresponding signatures in an attendance sheet to make it appear that they lunched with her at a clubhouse when actually she and her staff were the ones who did so; forging the signature of Judge Francisco Rojas in the Certificate of Service; failure to comply with OCA Circular No. 28-2003 regarding the holding of the alleged Judicial Service Team (JST) meeting, particularly the submission of the minutes thereof; and using the solicited note from the local government of Manolo Fortich to cover the aforesaid meals of her staff at the clubhouse after the SC auditors had declined the offer to have lunch there.     The Court noted that Faelnar’s admission to signing the name of Judge Rojas in her Certificate of Service and in some court orders is sufficient to establish a case of forgery against her. “The argument of

respondent that she was authorized by Judge Rojas to sign his name is immaterial to forgery,” the Court said. (AM No. P-06-2205, Felicidad D. Palabrica vs. Atty. Cecilia T. Faelnar, Clerk of Court VI, RTC, Branch 11, M. Fortich, Bukidnon, August 3, 2006)

CASE REPORTS: Deceitful Notary SuspendedBy Joshua P. Lapuz

     A lawyer was suspended for one month by the Supreme Court for making a false declaration in a public document.     The Court said that Atty. Vivian Rubia violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility when she prepared a Memorandum of Joint Venture Agreement for her clients Marilyn Carido and Yoshimi Nakayama and attested that it was acknowledged before her on January 9, 2001 when in truth it was notarized in 2002. It found that the document was ante-dated in an attempt to exculpate Marilyn from the Anti-Dummy charge against her in 2002. (AC Nos. 5907 and 5942, Elsa L. Modejar vs. Atty. Vivian G. Rubia, July 21, 2006)

CASE REPORTS: Lawyer Suspended for Pocketing Client’s MoneyBy Joshua P. Lapuz

     Atty. Minervo Langit was suspended for two years by the Supreme Court for appropriating Php255,000 of his client’s money. He was also ordered to restitute the amount.     “Respondent committed a flagrant violation of his oath when he received the sum of money representing the monthly rentals intended for his client, without accounting for and returning such sum to its rightful owner,” the Court said. It held that his failure to turn over the money to his client despite the latter’s demands gives rise to the presumption that he had converted the money for his personal use and benefit.      “Additionally, respondent failed to observe Canon 17 of the Code of Professional Responsibility which obligates a lawyer to take up the cause of his client with entire zeal and devotion,” said the Court. It found that Langit’s misconduct was aggravated by his unjustified refusal to heed the orders of the Integrated Bar of the Philippines requiring him to file an answer to the complaint-affidavit and to appear at the mandatory conference. (AC No. 7057, David L. Almendarez, Jr. vs. Atty. Minervo T. Langit, July 25, 2006)

CASE REPORTS: Lawyer Suspended for Refusing to Pay DebtBy Joshua P. Lapuz

     For refusing to pay his debt, Atty. Jeremias Vitan was suspended for six months by the Supreme Court.     “A lawyer may be disciplined for evading the payment of a debt validly incurred. In this case, the failure of Atty. Vitan to pay his debt for over three years despite repeated demands puts in question his standing as a member of the bar,” said the Court. It added that Atty. Vitan admitted having incurred the Php100,000 loan but later pointed to his employee Evelyn Estur as the true debtor.     “We find that his lack of sincerity in fulfilling his obligations is revealed by his acts of issuing promissory notes and reneging on them; executing a simulated Deed of Absolute Sale; and breaking his promise to redeem the property from the mortgagee,” it added. Atty. Vitan also issued several checks, all of which were dishonored due to closed account. (AC No. 6955, Mar Yuson vs. Atty. Jeremias R. Vitan, July 27, 2006)

Benchmark Online September 2006

Court Nullifies Suspension of Sentence of Minor ConvictBy Joshua P. Lapuz

     Juveniles who have been convicted of a crime punishable by reclusion perpetua, life imprisonment, reclusion perpetua to death, or death are disqualified from having their sentences suspended. Thus ruled the Supreme Court in the case of Frank Bansales, a minor convicted of murder.

     Bansales was charged for assaulting and stabbing to death with a knife his high school teacher, Yvonne Declarador. The Roxas City Regional Trial Court (RTC), Branch 14 convicted him but later suspended his sentence of reclusion perpetua and ordered his commitment instead to a rehabilitation center. This prompted the victim’s husband, Rennie, to file a petition in the SC questioning the RTC’s suspension of Bansales’ sentence.

     “The disqualification is based on the nature of the crime charged and the imposable penalty therefore, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile,” the Court said. It added that the RTC committed grave abuse of discretion in ordering the suspension of Bansales’ sentence. (GR No. 159208, Rennie Declarador vs. Hon. Salvador S. Gubaton, Presiding Judge, Branch 14, Roxas City, and Frank Bansales , August 18, 2006 )

SC Explains Legal Effects of Death Penalty ProhibitionBy Janice R. Erni

     A person whose sentence has been reduced to reclusion perpetua with the effectivity of RA 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines) is not eligible for parole. However, the convict is still bound to pay the amount of civil indemnity provided under the applicable laws. There is no automatic review of judgments of convictions where reclusion perpetua is imposed in lieu of death. Thus the Supreme Court clarified the effects of RA 9346 in three recent decisions.

     In the first decision penned by Justice Adolfo S. Azcuna, the Court held that in light of the passage of RA 9346, the penalty to be imposed on the accused Nicanor Salome for rape aggravated by dwelling shall be reclusion perpetua. However, pursuant to sec. 3 of RA 9346, Salome shall not be eligible for parole under the Indeterminate Sentence Law, the Court ruled.

    The Court also sustained the grant of Php75,000 as civil indemnity to the victim, explaining “that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.” It also added that since the death penalty’s imposition is now prohibited, there is a need to perfect an appeal, if appeal is desired, from a judgment of conviction for an offense where the penalty imposed is reclusion perpetua in lieu of the death penalty.

     In another decision, penned by Justice Romeo J. Callejo, Sr., the Court reduced accused Roberto Quiachon’s sentence for qualified rape from death to reclusion perpetua without parole.

     The Court also ordered Quiachon to pay, among others, the civil indemnity of Php75,000 as the “award is not dependent on the actual imposition of the death penalty but on the fact that the qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense.”

     Finally, in a decision penned by Justice Consuelo Ynares-Santiago, the Court found Edilberto Tubongbanua guilty for murder aggravated by taking advantage of superior strength and dwelling. He was sentenced to reclusion perpetua with no possibility of parole. The Court also ordered him to pay the victim’s heirs Php75,000 as civil indemnity as the award is mandatory and needs no proof other than the commission of the crime. (GR No. 169077, People vs. Nicanor Salome ; GR No. 170236, People vs. Roberto Quiachon; GR No. 171271, People vs. Tubongbanua , August 31, 2006)

Benchmark Online October 2006

Notarial Rules UpdatesBy Gleo Sp. Guerra

     The Court has recently authorized Clerks of Court of Regional Trial Courts to notarize private documents subject to the payment of the prescribed notarial fees, which shall be for the account of the judiciary, and the execution of a certification in the notarized documents that there are no notaries public within the territorial jurisdiction of the concerned RTC.

     It also required notaries public within the National Capital Region to secure their notarial registers from the Property Division of the Office of Administrative Services of the Office of the Court Administrator (OCA), while the others can also secure their notarial registers from the Office of the Clerk of Court of the RTC under the supervision of the Executive Judge who issued their respective notarial commissions. The notarial registers shall be available at Php1,200.00 each exclusive of shipping charges when sold in the provinces.

     In view of the current unavailability of notarial registers, notaries public may request in writing the Executive Judge who issued their commissions for them to use the prescribed temporary form. A copy of their current commissions must be attached to the said request.

     The Court also denied for lack of merit the motion of Chief Public Attorney Persida V. Rueda-Acosta for reconsideration of the January 31, 2006 denial of her request to exempt PAO lawyers from the payment of the fees for notarial commission and for the exemption of their clients from the payment of filing fees. (AM No. 02-8-13-SC, Re: 2004 Rules on Notarial Practice, August 15, 2006)

SC to Withhold Names of Women and Child Victims in DecisionsBy Annie A. Laborte

     To respect the dignity and protect the privacy of women and child victims, the Supreme Court has ruled to withhold their names and use instead fictitious initials in its decisions. It added that the personal circumstances of victim-survivors or any other information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall not be disclosed.     The ruling was made in a decision penned by Justice Dante O. Tinga where the name of the eight-year old victim was withheld and instead substituted with the initials “AAA.”     The Court said its ruling effectuates the provisions of RA 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act and its implementing rules; RA 9262 or the Anti-Violence Against Women and Their Children Act of 2004 and its implementing rules; and the Rule on Violence Against Women and their Children.      This rule has been prospectively applied by the Court as seen in the subsequent case of People vs. Mangitngit. (GR No. 167693, People of the Philippines vs. Melchor Cabalquinto, September 19, 2006; GR No. 171270, People of the Philippines vs. Alexander Mangitngit, September 20, 2006)

Revised Guidelines for Enhanced Pre-Trial under JURIS Project ApprovedBy Genevieve B. Zuñiga

     To expedite the resolution of cases through the use of amicable settlement, the Supreme Court has approved revised guidelines for an enhanced pre-trial proceeding under the Justice Reform Initiatives Support (JURIS) project for implementation in its model courts.     Under the revised guidelines, a raffle replaces the pairing system for resumption of judicial proceedings after Judicial Dispute Resolution (JDR) has not succeeded and the judge conducting the JDR will be called the JDR Judge instead of pre-trial judge when pre-trial proper is resumed after the JDR.      Cases are also allowed a settlement period of 30 days for first level courts and 60 days for regional trial courts, extendible only upon discretion of the JDR judge. Likewise, settlements reached regarding the civil aspect of criminal cases, wherein the period of payment exceeds one year, may be archived upon motion of the prosecution with concurrence of the private complainant and approval of the judge. Additionally, the

civil aspect of theft under Art. 308 of the Revised Penal Code as part of the cases involved is now included for referral to mediation.     Before the implementation of the revised guidelines, judges will be required to undergo orientation and training in mediation, conciliation, and neutral evaluation. Thereafter, they shall be authorized to conduct JDR in all model court sites and their adjacent areas after Court-Annexed Mediation (CAM) has not succeeded.     Under the JURIS Program, two model courts have been set up in Bacolod and San Fernando, Pampanga. Additional model courts will be set up in Benguet, La Union, and Cagayan de Oro, to implement CAM and JDR. In these courts, mediatable cases are referred to CAM for mediation under accredited mediators in the Philippine Mediation Center (PMC) and subsequently referred to JDR for further mediation by the judges if such are not resolved under the former.      The goal of the JDR is to strengthen conciliation in the model court sites during the pre-trial stage to expedite the resolution of cases and thus decongest court dockets. (A.M. No. 04-1-12-SC PhilJA, Re: Philja Resolution No. 06-22, re: Revised Guidelines for the Implementation of an Enhanced Pre-Trial Proceeding under the JURIS Project, August 29, 2006)

Court Clarifies Payment of Corporate Rehabilitation FeesBy Arcie M. Sercado

     The Supreme Court recently clarified the manner of payment of the increased fees for corporate rehabilitation petitions, which are based on the value of assets or the amount of monetary claims against the debtor, whichever is higher.     Under the new rules, if the fees amount to less than Php100,000, it shall be paid upon the filing of the petition. However, if the fees exceed Php100,000, it may be paid on a staggered basis, Php100,000 to be paid upon filing and the balance to be paid as follows: 25 percent upon the issuance of an order giving due course to the petition, 25 percent upon the approval of the rehabilitation plan, and 50 percent to be included as part of the preferred payables to be settled in the rehabilitation plan.    The amendments will take effect on October 16. (AM No. 04-2-04-SC, RE: Amendment of Section 21(i), Rule 141 of The Rules of Court [A.M. No. 04-2-04-SC, August 16, 2004] by Clarifying the Manner of Payment of the Increased Fees for Corporate Rehabilitation Petitions, Taking Into Account the Court’s Issuance in Amendment on the Clarification on the Legal Fees to be Collected in Cases of Corporate Rehabilitation [A.M. No. 00-8-10-SC, December 10, 2002], September 19, 2006)

Award of Damages Not Immediately Executory in Intra-Corporate DisputesBy Arcie M. Sercado

     Effective October 16, all decisions and orders in intra-corporate controversies are immediately executory, except awards for moral and exemplary damages and attorney’s fees.     In a resolution, the Supreme Court said that an appeal or petition shall not stay the enforcement or implementation of the decision or order, unless restrained by an appellate court. (AM No. 01-2-04-SC, Re: Amendment of Section 4, Rule 1 of the Interim Rules of procedure Governing Intra-corporate Controversies by Clarifying that Decisions Issued Pursuant to said Rule are Immediately Executory except the Awards for Moral Damages, Exemplary Damages and Attorney’s Fees, if any, September 19, 2006)

E-Decisions Follow Cabalquinto RulingBy Madeleine U.V.G. Avanzado

     The Court has taken steps to ensure that decisions promulgated prior to the Cabalquinto decision will conform to the said ruling. Upon the instructions of Committee on Computerization and Library Chairperson Associate Justice Antonio T. Carpio, the SC Library Services and Public Information Office have started replacing the names and other information of women and children who are victims of crimes covered by RA 9262 in the electronic copies to be made available

through the E-Library and SC website starting with decisions and resolutions of the Court promulgated on March 27, 2004. The matter was also referred to the Committee on Revision of the Rules of Court for further study and recommendation.      Even before the Cabalquinto ruling was promulgated on September 19, 2006, the Court has already refrained from posting the full text of decisions in child sexual abuse and similar cases in the SC website. (AM No. 99-7-06-SC, In re: Internet Web Page of the Supreme Court, July 27, 2006) (With reports from SC Library Services Chief Ms. Milagros S. Ong)

Benchmark Online November 2006

SC Clarifies Rules on Indigent LitigantsBy Gleo Sp. Guerra

     Even if an applicant for exemption from the payment of docket and legal fees does not meet the salary and property requirements under Rule 141, sec. 19, i.e., the applicant’s gross income and that of his immediate family do not exceed an amount double the monthly minimum wage of an employee and the applicant does not own real property with a market value of more than Php300,000.00, the applicant may still be exempted if he can prove that he has “no money or property sufficient and available for food, shelter and basic necessities for himself and his family” under Rule 3, sec. 21.     Thus ruled the Supreme Court in a 19-page decision penned by Justice Presbitero J. Velasco, Jr. and concurred in by Justices Leonardo A. Quisumbing, Antonio T. Carpio, and Conchita Carpio Morales. Justice Dante O. Tinga concurred in the result. The Court therefore set aside the orders of the Regional Trial Court, Naga City disqualifying the spouses Antonio F. Algura and Lorencita S. J. Algura as indigent litigants and ordered the RTC to set for hearing the spouses’ motion to litigate as such.     “Recapitulating the rules on indigent litigants, therefore, if the applicant for exemption meets the salary and property requirements under Sec. 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the applicant should not be denied outright; instead the court should apply the ‘indigency test’ under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption,” the Court held.

CASE REPORTS: Judge Suspended, Fined for Failure to Inhibit Self, Improper ConductBy Joshua P. Lapuz

     Judge Charles Aguilar of the Laoag City Regional Trial Court, Branch 12 was recently disciplined by the Supreme Court for failing to inhibit himself in and dismissing a case wherein he had a personal and direct interest, abusing his authority, and for entering his appearance and attending court proceedings without prior written permission from the Court.     The Court held that Judge Aguilar’s reluctance to let go of a case involving a parcel of land of which he is a co-owner induced doubts and suspicions as to his honest actuations, probity, and objectivity. For this, it suspended him for three months without pay.     The Court also held that Judge Aguilar committed an unlawful act when he entered the premises of the said lot and willfully removed the wires and posts installed thereat. It also said that he practically took the law into his own hands when he entered and caused the leveling of said lot. The Court thus fined him Php11,000.     The Court also reprimanded Aguilar for failing to obtain a written permission from the Court prior to his court appearance in another case. (AM No. RTJ-03-1809, Busilac Builders, Inc. and Romeo M. Camarillo vs. Judge Charles A. Aguilar, Regional Trial Court, Laoag City, Branch 12, October 17, 2006)

CASE REPORTS: Disgruntled Complainant Fined for Maligning CourtBy Joshua P. Lapuz

     A litigant was recently fined Php20,000 by the Supreme Court for continuously filing pleadings containing innuendos that tend to malign the integrity of the Court.The Court said that Nestor Ernesto Dequiña went overboard when in spite of the dismissal of his complaint against Judge Rolando Ramirez and Clerk of Court Sandra Ledesma of the Cadiz City Municipal Trial Court in Cities, he still persisted in filing numerous pleadings reiterating his allegation that

the said dismissal was brought about by a syndicate coddling Ramirez and Ledesma. (AM No. MTJ-06-1657, Nestor Ernesto P. Dequiña vs. Judge Rolando V. Ramirez, Presiding Judge, MTCC, Cadiz and Sandra M. Ledesma, Clerk of Court, MTCC, Cadiz City, September 27, 2006)

CASE REPORTS: Lawyer Suspended for Shooting MotoristBy Joshua P. Lapuz

     For shooting an unarmed motorist in a traffic altercation, a lawyer was suspended for oneyear by the Supreme Court.       The Court found Atty. Arnel Alcaraz guilty of gross misconduct for firing at Ramon Gonzalez with a Super .38 caliber pistol along South Luzon Expressway. The two were involved in a traffic altercation when Alcaraz’s vehicle overtook and suddenly cut across Gonzalez’s path. After angrily confronting Alcaraz, Gonzalez drove on. Alcaraz, however, chased him and shot at him twice, missing in both instances.     “The vengeful and violent behavior exhibited by respondent in what should have been a simple traffic altercation reveals his conceit and delusions of self-importance,” the Court said. “By firing his gun openly in a congested highway and exposing complainant and the general public to danger, he showed his utter lack of a sense of responsibility, as well as of respect for law and order,” it added. (AC No. 5321, Ramon C. Gonzalez vs. Atty. Arnel C. Alcaraz, September 27, 2006)

CASE REPORTS: PAO Lawyer Reprimanded for Notarizing Receipt Without CommissionBy Joshua P. Lapuz

     A lawyer of the Public Attorney’s Office (PAO) was recently disciplined by the Supreme Court for performing a notarial act without a commission.     Atty. Noel Mora was reprimanded for notarizing without a notarial commission an acknowledgment receipt of the initial payment for a parcel of land. The Court deemed the same a violation of Canon 1, Rule 1.01 of the Code of Professional Responsibility stating that “a lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct.” (AC No. 6678, Jocelyn A. Saquing vs. Atty. Noel A. Mora, October 9, 2006)

CASE REPORTS: Judge Dismissed for CorruptionBy Joshua P. Lapuz

     A judge was recently dismissed by the Supreme Court for bribery. The Court found Judge Luisito Adaoag of the Gerona-Ramos- Pura, Tarlac Municipal Circuit Trial Court guilty of serious misconduct for soliciting and accepting Php20,000 from Desiree Legario in consideration of the dismissal of the case filed against her. Adaoag was caught in an entrapment operation by operatives of the National Bureau of Investigation.     Aside from dismissal, Adaoag was also ordered to pay a fine of Php2,000 for issuing a warrant of arrest while under suspension. (AM No. MTJ-03-1503, National Bureau of Investigation vs. Judge Luisito T. Adaoag, Municipal Circuit Trial Court, Gerona-Ramos-Pura, Tarlac, November 16, 2006)

CASE REPORTS: Lawyer Suspended for Reneging on Contractual ObligationBy Karen M. Martinez

     For refusing without justifiable reason to comply with his contractual obligation as vendor of a piece of land and for mortgaging the same property without informing the vendee, Atty. Alexander Bulauitan was suspended for one year by the Supreme Court.     “The Court finds the respondent’s act of giving the property in question in mortgage bordering on the fraudulent and surely dishonest,” said the Court. “Respondent had shown, through his dealing with the complainant involving a tiny parcel of land, a want of professional honesty. Such misdeed reflects on the moral stuff which he is made of,” it added. (AC No. 7280, Dahlia S. Gacias vs. Atty. Alexander Bulauitan,

November 16, 2006)

SC Clarifies Effects of RA 9346 on Graduation of Criminal PenaltiesBy Karen M. Martinez

     RA 9346 not only prohibits the physical imposition of the death penalty but effectively removes the penalty of “death” from the graduation of criminal penalties under Article 71 of the Revised Penal Code.     The Court clarified RA 9348’s effects in a 53-page decision penned by Justice Dante O. Tinga, which affirmed with modification the conviction of Alfredo Bon for the rapes and attempted rapes of his two minor nieces. The Court ruled that it “cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our laws.” Thus, the Court reduced Bon’s penalty for each of the six counts of rape to reclusion perpetua, while his penalty for each of the two counts of attempted rape was downgraded to an indeterminate penalty of two years, four months, and one day of prision correccional as minimum, to eight years and one day of prision mayor as maximum plus civil indemnity and damages.     Bon had been found guilty by the trial court of eight counts of rape and was given eight death sentences. The Court of Appeals had upheld six of the eight death sentences and downgraded the other two rape convictions to attempted rape. On review, the Supreme Court had to determine the proper penalty to be given Bon for the crimes of attempted rape: whether he should be sentenced to prision mayor, the penalty two degrees lower than reclusion perpetua, which is now the highest remaining penalty with the removal of the death penalty by RA 9346.     According to the Court, “the negation of the word ‘death’ as previously inscribed in Article 71 will have the effect of appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies to the level consistent with our penal laws.” It maintained that if RA 9346 was to be interpreted in such a way as to limit its effects only to matters concerning the physical imposition of the death penalty, there would be an anomalous situation where the penalties for the principals and accomplices are equalized in certain felonies but not in others.     The Court also clarified that the prohibition against the death penalty did not result in the reclassification of those crimes previously defined as “heinous.” It underscored the fact that the amendatory effects of the law pertain only to the application of the death penalty and not to the classification of felonies.     The Court extended the retroactive benefits of the enactment of RA 9346 in accordance with Article 22 of the RPC to persons previously convicted of capital offenses (except habitual criminals) but stressed that “this decision does not make operative the release of such convicts” as there are other remedies under the law which could be utilized to secure the reasonable release of such prisoners. (GR No. 166401, People v. Alfredo Bon, October 30, 2006)

CASE REPORTS: Retired Clerk of Court and Sheriff Fined for Undue DemolitionBy Joshua P. Lapuz

      Eriberto Sabas, a retired Clerk of Court and Ex-Officio Sheriff of the Municipal Trial Court (MTC) of Puerto Princesa City, Palawan, was fined by the Supreme Court from his retirement pay an amount equivalent to six months salary plus six months leave credits for grave abuse of authority and conduct unbecoming of an officer of the court.     Sabas caused the demolition of a fence and half of the house owned by the spouses Arthur and Leonora Stilgrove, which were not included in the MTC’s decision and special order of demolition. He also shouted unkind words at Arthur Stilgrove.    The Court said that Sabas’ actions, which were beyond the scope of his authority, deprived the Stilgroves of their property without due process of law. It added that he further failed to demonstrate courtesy and civility in the discharge of his functions when he shouted at Arthur Stilgrove. (AM No. P-06-2257, Sps. Arthur and Leonora Stilgrove vs. Clerk of Court Eriberto R. Sabas and Sheriff III Ernesto Simpliciano, November 29, 2006)